The plaintiff suffered very serious injuries as a passenger in a car, and a writ was issued within the three-year period against the driver and the owner of the car whose insurers made a substantial interim payment. The writ was not served, nor renewed at the end of 12 months, and the limitation period expired without its renewal. A second writ was issued, the insurers relied on the section 11 time bar and the plaintiff sought an extension of time under section 33.
Held: Lord Diplock ‘Faced with the unanimous decision of this House in Walkley that a plaintiff who has actually started an action before the expiry of the primary limitation period has not been prejudiced by what are now the provisions of s11 of the Limitation Act 1980, and therefore cannot bring himself within the provisions s33(1), the learned judge seized on a passage in my own speech in that case in which, with customary caution, I had left open the possibility that there might be some ‘most exceptional circumstances’ in which the plaintiff might be allowed to proceed after the expiry of the primary limitation period despite the fact that he had brought an action for the same cause of action before the three-years primary limitation period had expired. I added that the only exception I had been able to think of – ‘ . . would be in a case in which the plaintiff had been induced to discontinue by a misrepresentation or other improper conduct by the defendant.’ Walkley’s case was one of discontinuance of proceedings, and the example that I gave is perhaps more accurately characterised as an estoppel from relying on s11 of the Act rather than a disapplication of that section upon a direction of the Court made in the exercise of the discretion conferred upon it by s33, in the making of which direction the Court must have regard to the matters specified in s33(3). Whether a defendant is estopped or not is a question of law. It is not a matter of discretion for the Judge. Sir John Donaldson, MR pointed this out in his judgment in the instant case. The rationale of the rule laid down by this House in Walkley’s case did not logically admit of any exceptions.’
Judges:
Lord Diplock, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Brandon of Oakbrook and Lord Brightman
Citations:
[1983] 2 Lloyd’s Rep 260
Statutes:
Jurisdiction:
England and Wales
Citing:
Explained – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited by:
Cited – Shapland v Palmer CA 23-Mar-1999
The plaintiff’s car was struck by a company car driven by the defendant in the course of her employment and she sought damages. Her action, against the employer, was struck out as late under the 1980 Act. She then commenced an action against the . .
Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Cited – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Limitation
Updated: 29 April 2022; Ref: scu.185752